Tatum v. State

• Decision Date: 12 October 1936
• Docket Number: 32336
• Court: Mississippi Supreme Court
• Parties: TATUM v. STATE

169 So. 841

176 Miss. 571

TATUM v. STATE

No. 32336

Supreme Court of Mississippi

October 12, 1936

Division B

1 HOMICIDE.

Evidence held sufficient to sustain conviction of husband for murder of wife.

2. CRIMINAL LAW.

Where no bill of exceptions was taken signed by two attorneys on refusal of trial judge to sign bill of exceptions, there was no ground for reversal, since statute providing that two attorneys present at time may sign bill of exceptions where judge refuses to do so provides only remedy (Code 1930, sec. 590).

3. CRIMINAL LAW.

Instructions must be read and considered together.

4 HOMICIDE.

In murder prosecution, instruction that malice may be formed within a moment's time held not erroneous for failure to use words "malice aforethought," when read with other instructions.

HON. T H. MCELROY, Judge.

APPEAL from the circuit court of Lafayette county HON. T. H. McELROY, Judge.

J. E. Tatum was convicted of murder, and he appeals. Affirmed.

Affirmed.

J. W. T. Falkner, C. A. Bratton and Samuel V. Pack, all of Oxford, for appellant.

There is one question, and one only, in dispute between appellant and the state. Under the proved facts and appellant's theory of the case, it is admitted that appellant killed his wife. The sole question is whether he killed her with deliberate design. If so, appellant is guilty of murder; if not, the inescapable conclusion is that the death was accidental and there was no murder.

Deliberate design or premeditated design is meant by the use of the term "malice aforethought." But the fourth instruction for the state did not employ the term "malice aforethought." That instruction charged the jury that "malice" is a necessary ingredient of the crime of murder, and that "malice" may be suddenly formed. If the mere word "malice" be used without the qualifying term "aforethought" is the meaning synonymous with, or equivalent to, deliberate design so as to be a correct statement of the mental constituent necessary to constitute the crime of murder?

This question is not new. Those courts which have had occasion to consider it have answered it in the negative, as a matter of our common law.

State v. Curtis, 70 Mo. 594; State v. Green, 42 La. Ann. 644, 7 So. 793; Tuft v. Commonwealth, 104 Ky. 299, 46 S.W. 675.

Does Mississippi adhere to this established rule of the common law that malice, rather than malice aforethought, does not constitute such intent as to justify conviction for murder? This honorable court has held that Mississippi does adhere to the rule above stated.

Brett v. State, 94 Miss. 669, 47 So. 781.

The force and reasoning of this honorable court in Brett v. State, supra, has, in comparatively recent years impressed itself upon the law of a sister state.

State v. Robinson, 143 La. 543, 78 So. 933.

It is a fundamental rule of procedure that instruction of a jury on an abstract principle of law which is not applicable to the evidence is erroneous, no matter how accurate and correct the instruction may be as abstract proposition. This honorable court has repeatedly reversed judgments because that rule was transgressed.

Brown v. State, 149 Miss. 239, 115 So. 433; Rogers v. State, 82 Miss. 479, 34 So. 320; Gerdine v. State, 64 Miss. 798, 2 So. 313; Boyd v. State, 84 Miss. 414, 36 So. 525; Cryer v. State, 71 Miss. 467, 14 So. 261, 42 A. S. R. 473; Maury v. State, 68 Miss. 605, 9 So. 445, 24 A. S. R. 291; Wheeler v. State, 76 Miss. 265, 24 So. 310; Oliver v. State, 39 Miss. 526; Johnson v. State, 86 So. 853, 124 Miss. 429; Cothran v. State, 39 Miss. 541; Frank v. State, 39 Miss. 705.

For the reasons that the instruction used the term "malice" instead of "malice aforethought," and charged the jury that the necessary malice may be formed instantly, when there was no evidence to support such charge, it is clear under the decisions of this honorable court that the fourth instruction was erroneous.

McDonald v. State, 78 Miss. 369, 29 So. 171; Gerdine v. State, 64 Miss. 798, 2 So. 313.

Webb M. Mize, Assistant Attorney General, for the state.

The fourth instruction was not erroneous. This instruction is as follows: "The court charges the jury for the state that while malice is necessary ingredient to the crime of murder yet it does not necessarily take years, months, weeks, days, hours or even minutes to form said malice but malice may be formed within a moment's time."

This instruction merely tells the court that while malice is a necessary ingredient to the crime of murder that it does not take any particular period of time for same to be formed. The law is well settled in this state to the effect that malice may be suddenly formed and that no particular time of deliberation is required for its formation.

Motley v. Smith, 172 Miss. 148, 159 So. 553; Williams v. State, 163 Miss. 475, 142 So. 471; Dye v. State, 127 Miss. 492, 90 So. 180.

Instruction No. 1 for the state defines the crime of murder and says that murder has to be done with "deliberate design to effect the death of the person killed." Therefore, Instruction No. 1, for the state gives the definition of murder and Instruction No. four, the one complained of here clarifies what is meant by deliberate design and the instructions must be read together as if they were one instruction. Where all the instructions in a case read together correctly state the controlling principles of law applicable to the case, there is no error committed and the Supreme Court will not reverse on the instructions.

Upton v. State, 143 Miss. 1, 108 Miss. 287; Cummins v. State, 144 Miss, 634, 110 So. 206; Bailey v. State, 174 Miss. 453, 165 So. 122; Williams v. State, 160 Miss. 485, 135 So. 210; Ivey v. State, 154 Miss. 60, 119 So. 507; Norris v. State, 153 Miss. 365, 108 So. 809.

The verdict was not contrary to the law and evidence.

A verdict on conflicting evidence will stand on appeal.

Kelly v. State, 158 Miss. 808, 131 So. 272; Evans v. State, 159 Miss. 561, 132 So. 563.

Argued orally by C. A. Bratton, for appellant, and by Webb M. Mize, for the state.

OPINION

Ethridge, P. J.

Appellant, J. E. Tatum, was indicted at the September, 1935, term of the Lafayette county circuit court for the murder of his wife, Mrs. Vivien Cooper Tatum; was convicted and given a life sentence in the state penitentiary, from which this appeal is prosecuted.

It appears that this killing occurred on September 9, 1931.

It was the theory of the state that the appellant and his wife returned from a visit late in the afternoon of that day and that the appellant drove his car up to the back porch of his home, this being his custom in order that he might step conveniently from the running board to the porch. His wife got out of the car and started into the house. Appellant took out of the car a shotgun, and holding this, he placed his artificial foot upon the running board and started out of the car. The gun was fired by the appellant from this position, striking his wife beneath the left shoulder blade, the shot then ranged upward and lodged in the left side of the right breast, producing a bulging, as one witness described it, like a "chicken crop."

The state produced two eyewitnesses who claimed to have witnessed the killing, and they testified that the appellant pointed the gun at his wife; that, at first, it snapped and did not go off; that his wife cried out, "Oh Jesse;" that the appellant fired and his wife fell; that the appellant then ran out in the yard and began to beat the gun on the ground, and called a neighbor, stating that his wife was shot.

There was other testimony tending to show family trouble and a motive for the killing, the details of which are not necessary to be set out.

There was also introduced a witness who testified that she overheard an angry conversation between appellant and his wife regarding the presence in their home of a Memphis woman whom appellant had employed as a farm hand. There was a statement by another witness to the effect that, some time after the killing, in a...